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en-usTechdirt. Stories filed under "adwords"https://ii.techdirt.com/s/t/i/td-88x31.gifhttps://www.techdirt.com/Tue, 4 Feb 2014 15:14:33 PSTOur Broken Patent System: Company That Does Nothing May Get Hundreds Of Millions Of Dollars From GoogleMike Masnickhttps://www.techdirt.com/articles/20140203/17483226082/our-broken-patent-system-company-that-does-nothing-may-get-hunderds-millions-dollars-google.shtml
https://www.techdirt.com/articles/20140203/17483226082/our-broken-patent-system-company-that-does-nothing-may-get-hunderds-millions-dollars-google.shtml6,314,420 and 6,775,664), had won a lawsuit against Google. Vringo was a failed ringtone company that had bought those highly questionable patents from the failed search engine Lycos and then sued basically everyone who ran a search engine. Microsoft agreed to settle (with a bizarre stipulation promising to pay 5% of whatever Google finally had to pay), while Google agreed to indemnify a bunch of the others that were all using Google's search under their own. The jury found that Google's AdWords product infringed, and gave an award much lower than what Vringo had asked for.

However, there was a further dispute about how much Google should have to pay for "ongoing" infringement. Google had argued that it had changed the way AdWords worked to avoid infringement, but Vringo disagreed. A judge not only agreed with Vringo, but has now awarded Vringo effectively 1.36% of all AdWords revenue -- which represents the majority of Google's revenue. No one's exactly sure how much, but it's probably in the range of $250 million per year until the patent expires in 2016.

This is silly. There's nothing in the patent that was key to Google doing what it does. There was nothing in the patent that taught anyone anything. In fact, Vringo flat out concedes that Google didn't "copy" anything. It just built its own product in a manner that best served its users. And Vringo, which did nothing at all, may now cash in for hundreds of millions of dollars. For doing nothing.

In a true capitalist system, when a company fails it goes out of business. Patents like this are a joke on the free market. They allow failed companies to sue those who succeed and get hundreds of millions of dollars out of them. They let companies that failed cash in for doing nothing -- for failing in the market place. It's a tax on companies that build something consumers want, paid to companies that could never correctly figure out what the market wanted. It means the companies that improve the world have to pay off the companies that have done nothing to improve the world. How is that possibly a fair or reasonable result?

I'm honestly curious for the usual crew of patent system defenders to explain how Vringo deserves ~$250 million a year for not doing anything at all to improve search.

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]]>that's not innovationhttps://www.techdirt.com/comment_rss.php?sid=20140203/17483226082Tue, 12 Feb 2013 00:14:07 PSTAussie Court Realizes That Google Is Not Responsible For Content In Google AdsMike Masnickhttps://www.techdirt.com/articles/20130208/02440021917/aussie-court-realizes-that-google-is-not-responsible-content-google-ads.shtml
https://www.techdirt.com/articles/20130208/02440021917/aussie-court-realizes-that-google-is-not-responsible-content-google-ads.shtmlsuing Google because other companies had purchased ads deemed to be "misleading" on Google. As we noted at the time, the ACCC seemed really confused about how Google worked, and the difference between being a self-service platform/tool and being a full-service advertising media company. While the ACCC ran into some trouble early on (its arguments were deemed "incomprehensible" by the first court) they actually won on appeal. The good news, however, is that the case moved up another level, and the High Court has overturned that decision with a pretty clear statement (pdf) on the basic issue:

Ordinary and reasonable users of the Google search engine would have
understood that the representations conveyed by the sponsored links were those of the advertisers,
and would not have concluded that Google adopted or endorsed the representations. Accordingly,
Google did not engage in conduct that was misleading or deceptive.

This may not seem like a big deal, but as Ali Sternburg rightly explains, having strong protections for secondary liability is a huge part of why the internet is so useful and innovative. In simple terms, we don't blame third party service providers for misuses by their users, because that takes away massive incentives for the service providers to innovate in the first place. It chills innovation in a major way.

Safe harbors from secondary liability are essential for Internet platforms and businesses, and it is encouraging when other countries affirm these principles.

Unfortunately, some of these safe harbors have come under increasing attack over the past few years, as people who feel wronged go the Steve Dallas route, and assume that if they've been wronged, it makes sense to sue the company with the deepest pockets, rather than those actually responsible. But, when you do that, you create incredible incentives to effectively shut down any open platforms, because the threat of liability is just too risky. The stifling effects are enormous, whereas the benefit from protecting platform providers from liability for users' actions is tremendous. And, no, this doesn't mean that illegal activity is allowed. It just means that liability is properly focused on those who actually break the law.

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]]>good-rulinghttps://www.techdirt.com/comment_rss.php?sid=20130208/02440021917Tue, 6 Nov 2012 20:03:58 PSTEnd Of Bogus Trademark Lawsuits Over AdWords In SightMike Masnickhttps://www.techdirt.com/articles/20121106/02040020944/end-bogus-trademark-lawsuits-over-adwords-sight.shtml
https://www.techdirt.com/articles/20121106/02040020944/end-bogus-trademark-lawsuits-over-adwords-sight.shtmladvertising on a third party site against a competitor's trademark is just good marketing, not trademark infringement. To bring up an analogy, many of us are used to supermarkets that display coupons near competing products -- or where you get handed competing coupons printed out at checkout. This is the exact same concept. It's perfectly reasonably that if you're searching for a certain brand name, a competing company may seek to buy clearly marked advertisements that attempt to offer you a better deal. There's no confusion by the consumer and no "dilution" of the original brand. It's just good competition. Even more bizarre is the fact that these lawsuits targeted Google, rather than the advertiser directly. After all, Google just provides the platform. If an ad is actually confusing to users, then the only trademark claim would be against the company who actually created the confusing ad, not the platform that hosts it.

Back in 2005, with the high profile Geico case, we had hoped that the court would set the record straight on all this, but it chose to punt on the key questions, and Google and Geico eventually settled, which only resulted in a bunch more similar lawsuits. Perhaps the most well known was the one that Rosetta Stone filed back in 2009 (the ninth such case). That case has been kicking around for years, with various ups and downs. Rosetta Stone even went so far as to support SOPA's predecessor, COICA, in the hopes that it would be useful in making Google liable for the ads others placed on its site.

We had thought that a clear headed judge would point out the obvious, but instead, we got a massively confused ruling that was quite troubling in which it was unclear if the judge really understood the issues at play. Given all of this, it's not a huge surprise that Google figured out a way to settle the case out of court. While it probably had to pay a small sum to make that happen, Eric Goldman notes, nothing in what's been announced suggests that Google agreed to change any of its practices. He also notes that, at this point, nearly every such case against Google has ended in a Google win or quiet settlement in which Google's policies are left intact:

Irrespective of the specific settlement terms, ending this case is a strategic win for Google because it takes out the last “major” US trademark owner challenger to AdWords. Combined with the recent dismissal of the Jurin lawsuit, Google is now down to two pending US trademark lawsuits over AdWords: CYBERsitter and Home Decor Center. Despite CYBERsitter’s recent intermediate “win,” I don’t think either of the two remaining lawsuits are dangerous to Google. As a result, Google is tantalizingly close to successfully running the table on all of the US trademark challenges to its AdWords practices. When this happens, Google will have legitimized the billions of dollars of revenues it makes by selling trademarked keywords in AdWords.

Eric may be slightly more optimistic on this than I am. Having seen so many of these cases come and go, I still expect others to jump in, in the hopes of getting offered a similar "settlement" just to go away. Hopefully one of the remaining cases ends in a clear judicial smackdown against companies who are trying to stretch trademark law well beyond its intended purpose.

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]]>getting-there...https://www.techdirt.com/comment_rss.php?sid=20121106/02040020944Wed, 11 Apr 2012 10:21:05 PDTUnfortunate: Appeals Court Revives Misguided Rosetta Stone Lawsuit Against GoogleMike Masnickhttps://www.techdirt.com/articles/20120410/05070218437/unfortunate-appeals-court-revives-misguided-rosetta-stone-lawsuit-against-google.shtml
https://www.techdirt.com/articles/20120410/05070218437/unfortunate-appeals-court-revives-misguided-rosetta-stone-lawsuit-against-google.shtmlis trademark infringement, it should be limited to the advertiser itself, not to Google, who is merely the platform. Even though a few courts had more or less said this in the past, software company Rosetta Stone decided to sue anyway back in 2009. The lawsuit was dumped pretty quickly, with the court getting the big questions right (though it went a little weird on some of the finer points).

Rosetta Stone appealed, and basically got every company who hates Google to join in on the fun. Not only that, but Rosetta Stone even used its loss as a reason to support SOPA's predecessor, COICA, saying that Google is "the gateway for criminals into America."

No, I'm not joking. Rosetta Stone literally said the fact that Google allows competitors to put up ads based on trademarked keywords makes it the (not "a", but "the") "gateway for criminals into America."

Unfortunately, rather than give the company the slap down it deserves, it appears that a somewhat confused appeals court is reviving the case and sending it back to the lower court to reconsider. The reasoning in this 7th Circuit ruling is extremely troubling on a variety of levels.

Quite amazingly, the court actually suggests that there's a possibility that Google is guilty of direct infringement of Rosetta Stone's trademarks. This makes no sense. Even if you somehow twisted things to make Google liable in some manner or another, the only possible liability has to be for secondary liability, because it's not the one directly making use of the trademarks in the first place. It's providing the platform and the advertisers are using the marks. This is pretty basic stuff, and it makes you wonder the technical literacy of the appeals court panel (or why they presume to judge a case where they clearly don't understand what they're talking about).

Another bizarre point is on the question of "intent." The court accepts much of Rosetta Stone's argument that because Google changed its policy over time to allow greater usage of trademarked terms, that it had intent to infringe. While that is one possible interpretation, there are much more sensible explanations that aren't so nefarious. Google stopped allowing the use of trademarked terms early on because it was a waste of time and resources to fight stupid lawsuits like this one. As it continued to grow, it realized that there was no legal reason why it shouldn't allow such uses, and it changed its policies. And, of course, it then gets hit with a stupid lawsuit... and the court seems to use the fact that Google changed its policy as potential evidence that it "intended to cause confusion"? That makes no sense at all. Google knows damn well that if it "intends to cause confusion" that it's going to lose a trademark lawsuit. Why would it ever do that? The company made clear that it expected to get sued, but it was doing this because it believed the law was on its side. It's quite a twist to claim "intent" to "cause confusion" based on that.

Next, the appeals court accepts as evidence of confusion, Rosetta Stone finding some guy who was confused by a counterfeit reseller's site and bought a counterfeit version of their software. Note that the guy was not confused by Google, but by the third party site. The lower court smartly rejected this as anecdotal and properly pointed out that the confusion arose not from Google, but from the other site. But the appeals court rejects that argument and says that the testimony is valid.

After that, the court also moves on to the question of contributory (rather than direct infringement) and bizarrely argues that the reasonable standard set forth in the famous Tiffany v. eBay case cannot be applied at the summary judgment level. This was the ruling that found that eBay was not guilty of contributory trademark infringement for counterfeit goods sold on eBay, in part because eBay made reasonable efforts to remove the infringing content when it became aware of it. This is a reasonable standard, and one that it makes sense to use in this case also, as the lower court did. However, the appeals court basically says that this standard can really only be used after a costly and wasteful trial, even if the court could get around all that by noting the obvious fact that the service provider is a good actor in getting rid of infringing works when it learns of them.

Things get equally troubling when we get down to the question of trademark dilution. The lower court rejected Rosetta Stone's arguments here on a few factors, but the appeals court sends that back too. Specifically, the lower court pointed out that there was no dilution because Google wasn't using the Rosetta Stone trademarks to identify its own (different) products, thus there was no dilution. This is the correct interpretation of the law, because the entire point of the (very new) concept of "dilution" in trademark law is that it can't be used to "dilute" the value of the trademark by applying it to different products. Here, no one is claiming that Google is making use of Rosetta Stone's marks to impart the value of that mark on something different. So the lower court got that right... but the appeals court gets confused and denies this reasoning, instead saying that this is really a "fair use" discussion, which can only be used as a defense, rather than a proactive argument at the summary judgment stage. Once again, that's batty. It only encourages long, drawn-out, wasteful and useless trials where none are needed.

The court did accept some of the more minor arguments of the lower court, but sent back all of the major issues. Hopefully the district court does a full trial and still comes to the same (correct and reasonable) conclusion, but in the meantime, they have to waste time and resources on a silly trial that was properly dumped in the first place.

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]]>can't-we-get-this-straight-already?!?https://www.techdirt.com/comment_rss.php?sid=20120410/05070218437Thu, 5 Aug 2010 18:55:28 PDTAs Expected, Rosetta Stone Loses Badly To Google In Claiming Trademark Violations For AdWordsMike Masnickhttps://www.techdirt.com/articles/20100805/03350110507.shtml
https://www.techdirt.com/articles/20100805/03350110507.shtmlis consumer confusion in an AdWords ad, Google is still the wrong party to sue. Instead, the liability belongs on whoever created the confusing ad.

While a lot of the more recent such cases have been from smaller companies, a lot more attention was paid to the news that language software firm Rosetta Stone sued Google over this issue last year. Eric Goldman, who's been tracking all of these types of lawsuits against Google, has a detailed discussion on the judge's ruling throwing out Rosetta Stone's case and giving a pretty complete victory to Google. Goldman notes that there are a few problems with the ruling, but it gets the big questions right. Now, hopefully, lawyers and companies will finally start to realize there's nothing illegal about Google selling ads on your trademarked terms.

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]]>when-will-these-lawsuits-stop?https://www.techdirt.com/comment_rss.php?sid=20100805/03350110507Tue, 9 Mar 2010 19:48:38 PSTRescuecom Declares Victory... In Dropping Its Lawsuit Against GoogleMike Masnickhttps://www.techdirt.com/articles/20100305/1609438444.shtml
https://www.techdirt.com/articles/20100305/1609438444.shtmlselling Adwords based on Rescuecom's trademarks. The lawsuit has been going on for a while, without Rescuecom getting very far. At almost every turn it was pointed out that what was happening was not trademark infringement. Finally, after many years, Rescuecom has given up and dropped the case... but in the process it's declaring "victory" in the lawsuit. Seriously. The explanation for the "victory"? That Google now lets trademark holders remove trademarks from the "keyword suggestion" tool. Only problem? Google enabled this in 2005.

Basically, the more likely story is that Rescuecom knew it was going to lose and just gave up and declared victory.

Oh, and also, just a few months ago, we noted that Rescuecom was on the other side of nearly an identical lawsuit, in which it was buying ads on Best Buy trademarks (hypocrisy much?). Being involved in two lawsuits at the same time where you're making totally contradicting arguments isn't likely to end well. So it seems likely that given the two lawsuits, and the likelihood of losing the Google one, Rescuecom threw in the towel on that one and then pretended it "won" for the sake of a press release. Based on that logic, can we declare "victory" in our decision not to sue Rescuecom for insulting our intelligence?

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]]>some victoryhttps://www.techdirt.com/comment_rss.php?sid=20100305/1609438444Fri, 19 Feb 2010 04:35:03 PSTAdWords Collections Attempt By Google Mutates Into Antitrust LawsuitMike Masnickhttps://www.techdirt.com/articles/20100218/1835208230.shtml
https://www.techdirt.com/articles/20100218/1835208230.shtmlantitrust lawsuit against Google by a company named TradeComet. The lawsuit was a joke. Basically, the company was an arbitrage player that tried to create spam-like pages that people would find on Google searches, and would make money by then getting people to click on pay-per-click ad links to get where they really wanted to go. Google properly classifies sites like this as spam, and its ranking methodology punished the site accordingly. It had nothing to do with being "anti-competitive," it was just Google making sure its search results were better for users. That lawsuit is basically in a holding pattern right now, as the judge considers Google's motion to dismiss.

However, a similar lawsuit has popped up, and it's a bit strange. Eric Goldman has all the murky details, of how a shopping search engine named myTriggers apparently got a line of credit from Google and used it to buy a bunch of AdWords search ads to drive traffic to its site (and then raised money based on the resulting traffic). Once again, Google rejiggered its algorithm, and suddenly the ads for myTriggers were a lot more expensive (by one to two orders of magnitude). The company couldn't pay its bill to Google, so Google hired a local lawyer (in Ohio) and went to court to try to get myTriggers to pay the $335,000 it owed. Simple enough.

Except that myTriggers returned fire by claiming antitrust violations by Google, and even went out and hired three separate lawfirms, including (conspiracy theory time) the same law firm that represented TradeComet and which is closely connected to Microsoft. As Goldman notes:

I am struggling to make sense of myTriggers' litigation choices. Assuming myTriggers even has the money, writing a $335k check to Google (and I bet Google would have taken less!) is almost assuredly cheaper than paying three law firms to mount an antitrust assault on a $20B/year behemoth. Assuming that myTriggers wants to maximize profits, then either (1) myTriggers thinks its odds are good enough that it will win AND make enough money to pay the 7 lawyers on the counterclaim's signature page plus their teams, or (2) the law firms struck an unbelievably sweet deal on fees.

Goldman also notes that Google probably wishes it hadn't filed a claim in a local Ohio state court, as the antitrust battle might now need to be fought there, rather than in a friendlier federal court closer to home:

Whatever the case, I suspect the antitrust claims caught Google flat-footed. A simple and low-stakes collections matter has blown up into a potentially significant lawsuit in an undesirable forum. Google chose Ohio state court for the collections matter despite its AdWords contract, so now it will have a tough time extricating itself from that court. But I suspect it would rather have an antitrust case in federal court, not state court--often (but not always) federal judges are more sophisticated than state judges and less susceptible to hometown bias. And I'm sure Google would rather fight antitrust claims on one of the coasts than in the Rust Belt, especially if myTriggers argues that Google's evilness cost Ohioans jobs. Google probably didn't mean to offer battle in this venue, but someone did a really good job of seizing the opportunity and forcing Google to fight the battle in a suboptimal setting.

As with the TradeComet case, the antitrust claim from myTriggers sounds incredibly weak, and it probably should be thrown out, but given the uncertainties of it being filed in the local court, Google may have to take it a bit more seriously. And, of course, the possibility of a secret Microsoft connection makes this even more interesting. Still, I can't see this getting that far in the long run. I hope that the judge recognizes the basic weaknesses of the case: here's a company that relied entirely on a single supplier who had every right to change its policies if it felt it didn't deliver a good customer experience, and it did so. myTriggers now seems to be suing as some sort of sour grapes for its own business failings.

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]]>didn't expect that, did you..https://www.techdirt.com/comment_rss.php?sid=20100218/1835208230Fri, 4 Dec 2009 13:06:36 PSTIs Google Banning AdSense On Sites It Thinks Have Infringing Content?Mike Masnickhttps://www.techdirt.com/articles/20091203/1312097184.shtml
https://www.techdirt.com/articles/20091203/1312097184.shtmlThomas O'Toole points us to yet another issue with Google customer service, where an author who holds the copyright on his own books published them online but was denied the ability to put AdSense on the site, after Google told him it had found "it contains copyrighted material." Of course, this makes no sense. Nearly every website "contains copyrighted material," because any new creative content placed in a fixed form -- such as a website -- is automatically covered by copyright. What I'm guessing Google meant (even though it got it wrong) was that it thought the site contained infringing or unauthorized copyrighted content -- though, if that's the case, that's what it should have said.

And, once again highlighting Google's communication problem, the rejection came from an email address called "noreply," making it difficult for the author to get clarification. He did eventually get Google to "resolve" the issue, but Google's overall policy on the matter is not explained at all. Does Google have an official policy where its AdSense team tries to determine if content on a website is infringing? If so, do they have an official dispute process? Does the AdSense team take into account fair use? Google has, generally speaking, been very good on issues of copyright and fair use, but this particular policy seems rather strange.

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]]>odditieshttps://www.techdirt.com/comment_rss.php?sid=20091203/1312097184Tue, 10 Nov 2009 21:30:00 PSTPR Response Via Adwords?Mike Masnickhttps://www.techdirt.com/articles/20091110/1251526882.shtml
https://www.techdirt.com/articles/20091110/1251526882.shtmlstarting to use targeted Google AdWords buys to respond to negative press coverage. It doesn't seem like this sort of thing would really be all that effective, but the article discusses a PR guy who bought up AdWords on a variety of related keywords for the New Zealand Seafood Industry Council, after the NY Times came out with a negative story about overfishing. Of course, it looks like the guy also went over the line, claiming in one ad that the NY Times "apologizes for story," when the truth is that it just apologized for its use of a photograph it didn't have the rights to -- not the story itself. Amusingly, the guy also buys the reporters' own names as keywords in running his ads. I could see how that might intimidate the journalists (if they're particularly thin-skinned) but it's not really clear how that actually helps get the "other side" out.

What was potentially more interesting is that the NY Times (unlike many other newspaper websites) actually linked to the Council's website within the story, and the Council changed the page that clickers ended up on to a rebuttal to the NY Times story, whereas before it had just been a page about the type of fish in question. That seems like a smart move by the Fish Council, though it makes you realize why some publications might be skeptical about linking out, especially when whoever operates the site being linked to has the opportunity to change the site.

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]]>that's-one-tactichttps://www.techdirt.com/comment_rss.php?sid=20091110/1251526882Wed, 23 Sep 2009 18:51:20 PDTIndian Company Sues Google For Showing Competitors Ads... Even Though It Places Ads On Competitors TooMike Masnickhttps://www.techdirt.com/articles/20090922/0431336279.shtml
https://www.techdirt.com/articles/20090922/0431336279.shtmlshouldn't be a trademark violation (unless the resulting ad is confusing). It's just well-placed marketing. Furthermore, even if it is trademark infringement, it shouldn't be Google's liability, but the party who bought and created the ad. However, the lawsuits still keep coming -- with the latest one being in India. But what makes this one special is that the complaining company seems to be buying those types of ads itself. So while it's complaining that competitors' ads show up on searches for its own name, it had no problem buying ads on competitors' names. Why not just try competing by offering a better service, rather than worrying about how competitors advertise?

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]]>what's-good-for-us...https://www.techdirt.com/comment_rss.php?sid=20090922/0431336279Tue, 22 Sep 2009 20:52:50 PDTEU Court Of Justice Says Selling Ads On Trademarked Keywords Is Not Trademark InfringementMike Masnickhttps://www.techdirt.com/articles/20090922/1352546283.shtml
https://www.techdirt.com/articles/20090922/1352546283.shtmlwon a case against Google in France, but that case moved up to the European Court of Justice, and senior judge there has now stepped in and said that selling ads shouldn't be trademark infringement, though a full decision is still a few months (at least) away. There's also an odd caveat: "Google could be held liable if brand owners could show that Google's ads had damaged their trademarks." What, exactly, does that mean? I'm guessing it's something similar to the already troubling "dilution" standard used in the US, but it seems impossibly vague and open to interpretation (and countless lawsuits).

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]]>good-newshttps://www.techdirt.com/comment_rss.php?sid=20090922/1352546283Mon, 13 Jul 2009 18:10:37 PDTYet Another Misguided Lawsuit Over Google's AdWords, This Time From Rosetta StoneMike Masnickhttps://www.techdirt.com/articles/20090712/2345015521.shtml
https://www.techdirt.com/articles/20090712/2345015521.shtmlthe ninth such lawsuit against Google, claiming trademark violations for allowing people to buy AdWords on trademarked terms (or suggesting them as keywords). This time the company suing is Rosetta Stone, but the complaint is basically the same. In fact, it uses the same lawyers and apparently the same boilerplate language as some previous lawsuits (wonder if they charge full price for reusing the same text?). The problem is the same, however. It's a general misunderstanding of the purpose of trademark law, which does not give the trademark holder full control over the trademark, but merely is designed as consumer protection to stop confusion among buyers or, possibly, dilution of the trademark. But that does not prevent the use in competitive advertisements. And, even if it did the liability would be on the advertising party, and not Google. But Google has the cash, so everyone sues Google.

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]]>blame-the-real-party!https://www.techdirt.com/comment_rss.php?sid=20090712/2345015521Fri, 15 May 2009 15:19:00 PDTWhy Is Google Changing Its AdWords Trademark Policy Now?Mike Masnickhttps://www.techdirt.com/articles/20090515/0336134898.shtml
https://www.techdirt.com/articles/20090515/0336134898.shtmlGoogle has changed its rules on trademarks and AdWords in many countries around the world. In the past, it had limited the use of trademarks both in the ads and (more importantly) as keyword triggers. In the US it had allowed trademarks as keyword triggers (in most cases), but in other countries, where the laws and the courts more heavily favored trademark holders, the company had been much more strict.

Now, I think Google is absolutely right to take this stance, as I don't see why it should be a problem at all to advertise on trademarked keywords, so long as the ads aren't confusing to the users. Trademark is not about ultimate control over the mark, but has always been designed for the sake of consumer protection, to avoid having someone buying Bob's Cola thinking it's Coca-Cola. It was never designed to give total control to one company and allow them to prevent anyone else from making use of the trademark. Yet, over the years, trademark law has drifted further and further from those origins, and today many people falsely believe that it's just like a patent or a copyright.

And, of course, even if you grant the (false) premise that trademarked terms shouldn't be used as keywords to trigger advertising, it's doubly ridiculous that Google should be liable. Google is just the platform provider, and if there needs to be any liability, then it should be on the advertiser, not Google itself.

So while I'm quite happy that Google is taking this stance, I'm really surprised (and somewhat confused) as to why it's doing so. It will almost certainly lead to a lot of expensive lawsuits around the globe -- and given how some other countries interpret trademark law these days, Google stands a decent chance of losing in some of those locations. Even in the US, the issue still comes up quite often... and, in fact, just as this change was being announced, a class action lawsuit was filed against the company in the US over the issue. Hopefully this case goes nowhere fast, because it seems to be repeating all the mistakes of earlier cases, misunderstanding the purpose of trademarks and falsely blaming Google rather than the actual advertisers. However, it's noteworthy in that it's the first class action suit of this nature, rather than just a single company. That means there will likely be more such suits on the way... and we'll start to see them internationally as well, thanks to the policy change.

In a NY Times article about both the change and the lawsuit, a representative from Google is quoted as saying:

"I think that there will be trademark owners that do not like this policy," said Terri Chen, senior trademark counsel at Google. "But trademark law allows for that. It is a pretty well-established principle in the offline world and in the online world."

Again, while I agree, I find Google's somewhat cavalier attitude towards the lawsuits that are certainly on the way surprising. It's not just that trademark owners won't like the policy. Many of them are going to sue -- and trademark law around the world (unfortunately) is not as "well-established" as Chen seems to make out. All in all, it seems a bit surprising that Google would go out of its way to attract new lawsuits. Could it be that the company is back to fighting certain lawsuits for principle? This was something the company had done years ago, but had largely abandoned of late. Or is there some other reason? Some might argue that it's a pure money grab, as this will allow more (and potentially more lucrative) advertising to run on the site, but the cost of lawsuits and the uncertainty of those lawsuits could be quite expensive.

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]]>confidence-in-its-lawyers?https://www.techdirt.com/comment_rss.php?sid=20090515/0336134898Tue, 14 Apr 2009 00:16:25 PDTWhy Google Shouldn't Be Liable For Suggesting Trademarked Terms In AdWordsMike Masnickhttps://www.techdirt.com/articles/20090409/2220124459.shtml
https://www.techdirt.com/articles/20090409/2220124459.shtmlrecent ruling about Google's potential liability for suggesting trademarked keywords doesn't make much sense. His key point is a good one:

Perhaps Google did suggest a competitor's mark -- but trade-mark infringement only occurs when there is "use" in conjunction with similar products or services. How is Google supposed to know whether my use will infringe, or be perfectly lawful? A ruling that Google can never suggest keywords that happen to be trade-marked does not make sense to me.

For example, the word "Canton" has been trade-marked for various things by various companies in the U.S. and Canada, including speakers, liqueur, and soup. So if I wanted "David Canton" as a keyword, why would it be a problem for Google to suggest "Canton" as a possible keyword? Surely it's my responsibility to use that keyword for my own purposes to promote my legal services -- and not use it to sell my own line of speakers, liqueur or soup.

Google should have a role to play if I do that -- but the role should be to forward complaints or put the complainant in touch with me -- not to be liable itself for my infringement.

Indeed. Yet another reason for why the Second Circuit's ruling is so troubling.

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]]>it's-not-actual-use-in-commercehttps://www.techdirt.com/comment_rss.php?sid=20090409/2220124459Thu, 9 Apr 2009 16:16:00 PDTA Lawsuit Over Trademarks In AdWords That Makes SenseMike Masnickhttps://www.techdirt.com/articles/20090409/0011234451.shtml
https://www.techdirt.com/articles/20090409/0011234451.shtml
The site that it did lead to was registered under a masked name, so he ended up getting a subpoena and uncovering the name of the individual who owned the site. And here's where it gets odd: there's a lot of evidence out there that the guy in question works for Google having something to do with AdWords. So, Shoemaker has sued the employee (not Google itself, though). There are a lot of questions raised about this, including why it appears a Google employee may have been able to bypass Google's own blocks on using trademarked terms to run these ads. There's also an accusation, though again from just one side, that the same guy appeared to be using the identical keywords that Shoemaker uses -- suggesting that he had access to Shoemaker's account.

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]]>one-of-the-fewhttps://www.techdirt.com/comment_rss.php?sid=20090409/0011234451Mon, 6 Apr 2009 15:07:00 PDTDangerous Appeals Court Ruling Opens Up Google To Trademark Liability In AdWordsMike Masnickhttps://www.techdirt.com/articles/20090405/2152404403.shtml
https://www.techdirt.com/articles/20090405/2152404403.shtmllittle sense. The purpose of trademark law is to avoid consumer confusion, not give the mark holder total control over the mark. If the ad itself is confusing, then you could see a reason to sue the company that created the ad -- but it's ridiculous to blame Google or Yahoo, who had no part in actually creating the ad. A variety of lawsuits had agreed -- and, in fact, most of the recent lawsuits on this topic that we'd seen involved companies suing whoever took out the actual ad.

Unfortunately, it looks like that's about to change.

Eric Goldman has an analysis of a new Second Circuit ruling that found that Google is potentially liable for ads bought on trademarked terms, overturning a lower court ruling that made sense. Goldman points to some factual errors made by the court in making this decision, but the oddest bit of reasoning is that the court actually took on a point that we often raise here in discussing these types of cases: no one thinks there's any trademark infringement because a supermarket places multiple brands of soda in the same spot. The supermarket knows that people may be looking for Coca-Cola, but may be tempted to buy the off-brand cola that's on sale. That's not trademark infringement against Coca-Cola and certainly not the store's liability.... or is it. In this ruling, the court noted:

It is not by reason of absence of a use of a mark in commerce that benign product placement escapes liability; it escapes liability because it is a benign practice which does not cause a likelihood of consumer confusion. In contrast, if a retail seller were to be paid by an off-brand purveyor to arrange product display and delivery in such a way that customers seeking to purchase a famous brand would receive the off-brand, believing they had gotten the brand they were seeking, we see no reason to believe the practice would escape liability merely because it could claim the mantle of "product placement."

That implies that Google's placement of search ads somehow tricks users into believing when they click on, say, an ad for Avis, they're actually going to the Hertz website. Yet, there doesn't seem to be any evidence presented that users are regularly fooled by such ads. Most users recognize that ads are ads.

The ruling pins liability on Google because Google "suggests" terms that may be relevant, and since it suggests trademarked terms at times, that dumps the liability onto Google. But, again, that makes little sense. Nothing that Google does is specifically causing confusion. Simply suggesting a trademark isn't confusing anyone. Unfortunately, though, as the EFF points out in its analysis of the ruling, this is likely to lead to a lot of new bogus lawsuits against Google, and (most likely) Google scaling back some of its AdWords tools and programs, giving consumers less ability to find out about competitive offers when we search.

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]]>common-sense-is-missinghttps://www.techdirt.com/comment_rss.php?sid=20090405/2152404403Mon, 9 Feb 2009 14:31:00 PSTPsion Gets Google To Ban 'Netbook' In AdsMike Masnickhttps://www.techdirt.com/articles/20090209/0247563697.shtml
https://www.techdirt.com/articles/20090209/0247563697.shtmlattempt to reclaim the word "netbook." Years back, the company had a marginally popular product with that name -- though it no longer offers such a product. The company was apparently upset at the commercial use of the word "netbook" which is commonly being used to describe cheap, small laptops like the EeePC. jkOnTheRun now has a story -- direct from Psion PR -- claiming that Google has agreed to block Google ads that use the term after recognizing that Psion has a trademark on the term.

Of course, advertisers can still advertise using the keyword "netbooks" but are apparently barred from actually using the word in the advertisement itself. So a search on "netbooks" still shows ads -- just none of those ads say "netbooks" anywhere. Thus, if you look at the netbooks search, you see all the ads refer to things like "mini notebooks."

This seems pretty pointless all around. As much as Psion may wish it still holds onto the name of a product it stopped selling years ago, the term has become generically accepted as referring to this generation of small and cheap notebook computers. Psion has had nothing to do with the current value in the word, and its attempt to take back control over the word it abandoned years ago is not, at all, what trademark law was intended to allow.

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]]>doesn't-look-that-way...https://www.techdirt.com/comment_rss.php?sid=20090209/0247563697Thu, 5 Feb 2009 22:48:00 PSTAnother Bad French Ruling Against Google Over Trademarked AdwordsMike Masnickhttps://www.techdirt.com/articles/20090203/0203083618.shtml
https://www.techdirt.com/articles/20090203/0203083618.shtmlfined hundreds of thousands of euros for allowing certain trademarked words to have advertisements run against them.

It's hard to see how this makes any sense at all. First, unless the ads are designed to confuse someone, there should be no question that ads against a competitor's keywords are perfectly legal. There's no customer confusion (the point of trademark law). It's no different than having your product placed on the grocery store shelf next to competing products, or (as is quite common in supermarkets these days) having a coupon print out for your product when you buy a competing one. Claiming this is trademark infringement is just a weak attempt to stifle competition by brands that don't want to compete.

That said, even if you somehow think that this is trademark infringement, it's an even bigger stretch to then pin the liability on Google. The actual party doing the "infringing" would be whoever bought and created the advertisement. Going after Google is a Steve Dallas defense: going after the biggest company that, tangentially, is involved just because it has the biggest bank account. Sure, Google makes money from the ads, but that shouldn't create liability any more than the guy who sells the paints that are used to paint a trademark-infringing billboard is liable for what's painted. Like the paint seller, Google is just a tool provider and has nothing to do with the content. Unfortunately, this bit of common sense still hasn't made it into the French court system.

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]]>this-again?https://www.techdirt.com/comment_rss.php?sid=20090203/0203083618Wed, 16 Jul 2008 03:13:57 PDTLawyer Sues Google For Putting His Ads On Parked DomainsMike Masnickhttps://www.techdirt.com/articles/20080715/1641521693.shtml
https://www.techdirt.com/articles/20080715/1641521693.shtmlwere shown on parked domains and error pages which resulted in bad clicks. There are a few separate issues here that all seem to get mixed up in the lawsuit. If the the ads were really shown in places where they weren't relevant, then it shouldn't be a huge problem, as you would expect that there wouldn't be many clicks (Google's ad system only costs money if someone clicks). And, indeed, there were only a few clicks -- and none of those clicks turned into real leads for the lawyer. So the real question might be whether or not those clicks were fraudulent clicks -- but that doesn't seem to be what the lawsuit claims. Instead, the guy is just upset that his ads were shown on such pages and claims that Google is guilty of "fraud, business code violations, and unjust enrichment" for showing the ads on such pages. This seems like a tough one to prove. Google shows ads in plenty of places. If the clicks were fraudulent, that's one thing. But just because the clicks on certain pages didn't turn into leads (and we're talking about a rather small sample size that the guy is basing this on) it doesn't mean that Google is guilty of "fraud."

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]]>what-else-can-you-sue-google-over?https://www.techdirt.com/comment_rss.php?sid=20080715/1641521693Thu, 28 Feb 2008 00:46:42 PSTBuying Adwords Isn't Quite The Same Thing As Striking...Mike Masnickhttps://www.techdirt.com/articles/20080227/164027375.shtml
https://www.techdirt.com/articles/20080227/164027375.shtmlbuying some Google ads in protest. The Times Online tries to make this out to be an alternative to a strike or a walkout, and even implies that buying a few Adwords on Google to show their displeasure with the retailer Marks & Spencer would have a similar impact. It's difficult to see why buying some ads on the Marks & Spencer ad is going to have much of an impact at all on any negotiations with the union. The article is actually fairly weak -- not explaining clearly that the union is just buying ads that anyone could buy. It makes it sound as if the union is doing something special to have its complaints seen on Google. It also doesn't mention that M&S could just outbid the union to get a higher ranking in the ads and to explain its side of the story. It is nice that the group is trying alternative means to get its point across, but it hardly seems worth comparing it to a strike, as the article implies.